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Introduction

Full decision here.

Over the past few years, I have lost count of the number of employees who have contacted me asking me to remove my stores from the web. (I had one this morning for an article over 12 months ago!). This case highlights the (unintended) representational damage bring a matter into a public forum (eg the FWC) can do. This is a little different as it relates to a witness, not the applicant.

Background

In a decision dated 7 August 2020, the Fair Work Commission has received an application by Mr M pursuant to s.603 of the Fair Work Act 2009 (FW Act) to amend a decision issued by the Commission in 2017 in relation to an unfair dismissal application.

Mr M was not a party to the proceedings but appeared as a witness for the applicant in that matter. As a witness Mr M’s name was mentioned in the decision in a number of places. Mr M says that details of the decision have been “leaked” to an “organisation called Austlii.” [Austlii being a Commonwealth repository of all case law]. He says that he has applied for a number of jobs over the last three years and has been unsuccessful. When he has asked why he was not successful he says he was told that his name appeared “online”. He says that this has “caused me to fail at life and go in a downward spiral of depression and anxiety”. Mr M says that “any mention of my name under the FWC action might jeopardise my chance[s]” presumably of securing alternative employment. Mr M further suggests that the release of his details “is a breach of metadata and privacy laws”.

Mr M has applied to vary the decision so that his name is anonymised.

The legal bit

Section 603 of the FW Act states as follows:

Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

High Court precedent

The power available under s.603 of the FW Act was considered by the High Court in Esso Australia Pty Ltd v The Australian Workers’ Union. Whilst s.603 has broad power that does not mean it should be exercised without cause.

Importance of not discouraging witnesses

As the application sought would have no material effect on the decision itself, the Commissioner allowed the variation stating:

I have decided to grant the application of Mr M. Mr M was a voluntary witness in the proceedings. I accept that there may be occasions where Mr M’s name appearing in a decision of the Commission in relation to an unfair dismissal application may be misunderstood and misinterpreted.

“It is important … that witnesses come forward and give evidence to assist the Commission in making sound decisions. It is for this reason that I have decided to grant the application of Mr M”.

No breach

The Commissioner also clarified this misconception by the applicant:

“In granting this application I would, however, observe, that information has not been “leaked” to Austlii. Rather, Austlii has uploaded a decision of the Commission to its website. I would also observe that the publication of Mr M’s name was not a breach of privacy laws or “metadata” laws as claimed by the Applicant”.